JL v SL: The Treatment Of Non-Matrimonial Property In The English Courts

The law in relation to the treatment of non-matrimonial assets in the English Family Courts continues to evolve and JL v SL ([2015] EWHC 360) is the latest to join the alphabet of cases dealing with this issue. There had been two different schools of thought about how non-matrimonial assets should be treated. On the one hand, some judges have favoured a broad brush approach, effectively putting all the assets in a case on the balance sheet and then using their assessment of fairness to arrive at a division that reflects the fact that some of those assets arise from a source external to the marriage. On the other hand, some judges have adopted a more arithmetical approach, effectively separating non-matrimonial assets and matrimonial assets, dividing the matrimonial assets equally, and then considering the extent to which non-matrimonial assets should be divided by reference to the facts in each case. The award is then 'cross checked' to make sure it is fair. The latter of these approaches seems to be the one gaining most traction as this recent case demonstrates. In his Judgment, Mr Justice Mostyn started by revisting Lord Nicholls's Judgment in the case of White v White [2000]. In that case, in the context of a discussion of the possible reasons for a departure from sharing assets equally at the end of a marriage, Lord Nicholls said, 'the nature and value of the property and the time and circumstances in which the property was acquired, are among the relevant matters to be considered'. This statement was followed by Sir Mark Potter's Judgment in the Court of Appeal in Charman v Charman [2007] where he made it clear that sharing would apply to all property and not only to matrimonial property when he said, 'We [the Court of Appeal] consider the answer to be that the principle applies to all the parties' property but, to the extent that their property is non-matrimonial, there is likely to be better reason for departure from equality'. Examining both of these statements in this case, Mr Justice Mostyn acknowledged the inherent difficulty in their application and the interrelationship with an assessment of fairness. He agreed that 'fairness' lies in the eye of the beholder, commenting that that it was an elusive concept and an instinctive and intuitive response to a given set of facts. He emphasised the need for consistency from one case to another as otherwise the law would be but a 'lawless science'. Mr Justice Mostyn's preferred approach...